The most common way that police gain entry into homes to search for contraband is by obtaining the consent of the occupant. This often follows tips by nosy neighbors or anonymous callers on “drug hotlines.” Almost by definition, the police in these situations do not have probable cause to get a search warrant – but they usually don’t need it since most people allow the police to search without a warrant.

In this case, Kirk McAllister argued that the police obtained consent from the client in the classic way: promising that if he didn’t consent to the search, they would get a search warrant and the children would then be taken by Child Protective Services (CPS). After a long evidentiary hearing, the judge ruled that this amounted to a coerced consent, particularly because the police asserted that they would get a search warrant, not that they would merely apply to a judge for one. This was a correct statement of the law. The evidence of the marijuana cultivation was thrown out and the client’s case was dismissed.

In marijuana cultivation cases the two most important things to remember are that the police generally disrespect the medical marijuana law and that there is no advantage gained by willingly surrendering your constitutional right to be free from police searches without a warrant. (Case No. 1421376)

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